Where We Stand: Assessing Vacancies and Nominations in the Federal Judiciary – The South

We are in the August recess, a little more than six months into the Biden Presidency. When President Biden came to office on January 20, 2021, there were 52 current and future vacancies in the federal judiciary. Since that time, an additional 73 vacancies have opened and nine nominees have been confirmed, leaving 116 vacancies pending (including future vacancies). There are currently 26 more judicial nominees pending, meaning that 22% of vacancies have nominees. In comparison, by the August recess of 2017, President Trump had nominees pending for around 20% of vacancies. Given the lull during the recess, now is a good time to look at the landscape of federal judicial nominations: vacancies open; nominations pending; prospective openings. This week, we focus on the South.

Fifth Circuit

Court of Appeals

The Fifth Circuit Court of Appeals is arguably the most conservative court of appeals in the country. Many of the conservative legal movement’s most outspoken jurists, from Judge Edith Jones to Judge James Ho, sit on this court. The Fifth Circuit includes six nominees appointed by President Trump, four appointed by President Bush, three by President Obama, and two each by Presidents Reagan and Clinton. Of the judges, six are currently eligible for senior status: Reagan appointees Jones and Jerry Smith, Clinton appointees Carl Stewart and James Dennis, and Bush appointees Priscilla Owen and Leslie Southwick. Of the six, only Dennis, the Fifth Circuit’s oldest active judge and one of the few liberal voices on the court, has announced a move to senior status. So far, no nominee has been announced to replace Dennis.

The other judges on the court, with the exception of Stewart and potentially Southwick, are unlikely to take senior status anytime soon. Another of the court’s liberals, Judge James Graves of Mississippi, hits eligibility for senior status next year and may take so at that time.

Louisiana

Louisiana has three judicial districts: the Eastern; Middle; and Western. The twenty-two active judgeships across the three courts are all currently filled, although one will open on the Western District when Judge Elizabeth Erny Foote takes senior status in January 2022. No nominee has been put forward to replace Foote and Biden may seek to work with Louisiana Senators with a package of nominees to include U.S. Attorney picks and Dennis’ replacement.

Additional vacancies are likely, particularly on the Eastern District. Of the twelve active judges on the Eastern District, six are currently eligible for senior status: Martin Feldman, Sarah Vance, Eldon Fallon, Carl Barbier, Jay Zainey, and Lance Africk. Of the six, Feldman and Fallon, who are both over eighty, are judges to watch. Additionally, Chief Judge Maurice Hicks on the Western District, who will have to step down as Chief next year, is another possibility for senior status.

Mississippi

While Mississippi currently has no judicial vacancies, additional retirements are possible. Out of the nine active judges in Mississippi, three are eligible for senior status: Judges Michael Mills and Sharion Aycock on the Northern District; and Judge Henry Wingate on the Southern District. While no other judge reaches eligibility before 2028, Judge Carlton Reeves for the Southern District may be considered for elevation if either Southwick or Graves moves to senior status on the Fifth Circuit.

Texas

Texas’ four judicial districts entered the Trump Administration with eleven judicial vacancies, and, as a result of a flood of new confirmations, are almost entirely full. There is only one current judicial vacancy in Texas: on the Western District from the death of Judge Philip Martinez. Additionally, one future vacancy is expected next year when Judge Vanessa Gilmore moves to senior status in the Southern District. So far, there has not been any public movement in Texas towards recommendations to fill the vacancies.

Additional vacancies are likely as a number of judges are eligible for senior status. Currently, the possibilities include: Marcia Crone on the Eastern District; Sam Lindsay, Barbara Lynn, James Kinkeade and Jane Boyle on the Northern District; Lee Rosenthal, Ricardo Hinojosa, Lynn Hughes, Keith Ellison, and Andrew Crane on the Southern District; and Orlando Luis Garcia, Samuel Biery, Earl Yeakel, Kathleen Cardone, and Frank Montalvo on the Western District. Furthermore, next year, Judge David Godbey on the Northern District will reach eligibility for senior status.

Eleventh Circuit

Court of Appeals

The Atlanta based Eleventh Circuit, despite a more equitable party division, has a reputation almost as conservative as its neighbor to the West. An influx of Trump and Obama appointees (75% of the court has served less than ten years) leaves few judges who are eligible for senior status. One of the two judges who are, Judge Beverly Martin, is retiring in September. So far, there has been no nominee to replace Martin, who is one of the court’s few liberals. Judge Charles Wilson, the other judge eligible for senior status, is another liberal, ensuring that the conservative tilt of the court is unlikely to change anytime soon.

Alabama

All the states under the Eleventh Circuit are divided into a Northern, Middle, and Southern District. In Alabama’s case, the three courts together have fourteen judgeships: eight Trump appointees; three Bush appointees; two Obama appointees; and one vacancy. The lone vacancy is on the Middle District, vacated by Judge Andrew Brasher’s elevation to the Eleventh Circuit. Trump nominated Solicitor General Edmund LaCour to fill this seat, but LaCour was blocked by Sen. Doug Jones, and the vacancy is still pending. So far, there has been no nominee to fill this vacancy.

Additional vacancies are unlikely as no judge is eligible for senior status until Judge Scott Coogler reaches it in 2024.

Florida

Between the Northern, Middle, and Southern Districts of Florida, there are thirty seven judgeships, and two vacancies. The two currently pending vacancies are both on the Southern District of Florida. As Florida has two Republican Senators, Sen. Marcio Rubio and Florida’s Democratic House Delegation set up rival nominations commissions for the vacancies. Rubio recommended attorneys David Leibowitz and Detra Shaw-Wilder to fill the vacancies in July. The Democratic JNC also recommended Shaw-Wilder alongside state court Judges Samantha Feuer, Ayana Harris, and Miguel De La O, federal magistrate Shaniek Maynard, and federal public defender Michael Caruso. Having been recommended by both committees, it is likely that Shaw-Wilder will be nominated. However, it is unclear who the second nominee will be.

Additional vacancies are possible. Out of the thirty five active judges serving, seven are currently eligible for senior status: H.W. Bush appointees Steven Merryday and Michael Moore, Clinton appointees William Dimitrouleas and Donald Middlebrooks; and Bush appointees Timothy Corrigan, Marcia Cooke, and Jose Martinez.

Georgia

The Northern, Middle, and Southern Districts of Georgia have a total of eighteen judgeships: six appointees each of Presidents Obama and Trump; and four appointees of President Bush. There are also two vacancies on the Northern District of Georgia. Georgia Senators Raphael Warnock and Jon Ossoff began soliciting nominees for the vacancies early this year, with an application deadline of March 17, 2021. While no names have become public, it is likely that recommendations have already made their way to the White House. Additional vacancies are unlikely before 2023, unless Judge Leslie Abrams is tapped for the Eleventh Circuit to replace Martin.

23 Comments

  1. Stephanie Finley (Born 1966) is a former Obama nominee that never received a vote. Being an African American could make her more attractive for the fifth circuit vacancy or back to the Louisiana Western district vacancy. Cedric Richmond (Born 1973) could be an interesting pick for the appeals court as he is a former representative & currently works in The White House. But if I had to put money on the line, I would bet on it more then l likely being a state judge since Louisiana has a two term governor Edwards.

    With both Texas senators on the senate judiciary committee, it will be a rough road to fill any Texas district court vacancies with anybody remotely progressive.

    The Eleventh Circuit was probably the most disappointing in terms of retirements during the Trump administration. Two Clinton & one Obama appointees retired over the four year term as well as the oldest federal judge in the country at the time. It will take more then a decade or two to get that court back to a Democrat majority without adding seats or unexpected vacancies. As discussed on earlier articles, I expect Leslie Abrams to have first right of refusal for the Beverly Martin seat.

    I am expecting some bold picks for the district court vacancies in Georgia. Only young progressives should be considered while there are two Democrat senators.

    I’m happy The White House asked Rep. Wasserman Schultz to form a Democrat commission. I have little faith in senator Rubio to work in good faith & even less faith in senator Rick Scott. These are the approximate years of birth’s for the nominees both senator Rubio & Rep. Wasserman Schultz’s committees both recommended;

    Detra Shaw-Wilder – 1968
    David Leibowitz – 1978
    Samantha Feuer – 1976
    Michael Caruso – 1967
    Ayana Harris – 1980
    Shaniek Maynard – 1976
    Miguel de la O – 1964

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  2. Marco Rubio has been pushing hard for David Leibowitz for a while. The Trump White House refused to nominate him because he’d contributed to Democrats in the past (including Charlie Crist, Kyrsten Sinema, and even David Cillicine, all of whom voted for impeachment), so Rubio kept the seat open. My guess is that if the Biden White House nominates Leibowitz for one of the vacancies, Rubio will give the White House something close to a blank check on the other one. Look for Rick Scott to defer to Rubio on this.

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    • I was trying to find information as to why Trump never nominated David Leibowitz. That makes sense. I know governor DeSantis asked him to nominate Renatha Francis after her failed nomination to the Florida Supreme Court. Even though he asked him in mid September, I thought there was enough time to nominate both her & David Leibowitz to the two vacant district court seats.

      I don’t know if I would trust political donations to Democrats, especially those Democrats, as acceptable enough for a 1 to 1 ratio nomination. I hope The White House plays hardball & at least makes a deal close to the Pennsylvania deal in which the senator from the opposite party gets a 1 out of 4 ratio for nominees.

      And I would press harder to nominate Shaniek Maynard or Ayana Harris over Detra Shaw-Wilder as they are approximately a decade younger. Or at least Michael Caruso who is around the same age but at least a public defender.

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      • If I had a chance to talk to The White House to make a recommendation I would tell them to make this deal with senator Rubio. He commits to turning in his blue slip for all nominees for this Congress (He doesn’t have to vote yes on their confirmation, just allow them to receive a hearing) & in exchange President Biden will nominate David Leibowitz to the Court of International Trade. There are currently two vacancies & by statue one of the seats will have to be filled by a Republican. So President Biden can kill two birds with one stone with that deal.

        I don’t know David Leibowitz legal expertise but I am sure he’s probably just as qualified as some of Trump’s nominees that Republicans were willing to (And in some cases did) vote for.

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  3. About Louisiana, everything is on the back burner until the hurricane recovery is near completion. But Dequan is right, Stephanie Finley will get a close look if she wants it. Bill Cassidy will have a big say in this, given his vote for impeachment and the bipartisan infrastructure bill.

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    • I have new opinions about the upcoming vacancies in Louisiana. I have no idea who’s on the applicant list, but I believe Stephanie Finley will be nominated to succeed Elizabeth Erny Foote at District Court. As for replacing James Dennis, I think that the legal establishment in both parties wants the new judge to be from New Orleans. Finley is from Shreveport.

      The obvious choices to replace Dennis would be Nannette Jolivette Brown and Piper Griffin. Both have every necessary qualification. But the Biden White House has choosing unconventional candidates for the Appellate Courts. One name that I caught is Kenneth Polite, currently Assistant AG for the Criminal Division and former U.S. Attorney for Eastern Louisiana. He’s already been vetted (which is time consuming) for his current job and he has a biography out of a Horatio Alger story.

      I do think this blog is correct that the vacancies will be settled as a single package.

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      • The White House should give ZERO input to Republican senators on appeals court vacancies. I understand senator Cassidy voted to impeach President Trump & I understand senator Kennedy is on the senate judiciary committee but President Trump put hard core conservatives on the appeals court in states with two Democrat senators like California, New York & Minnesota over the objections of those Democrat senators. We can’t keep having two standards. Elections have consequences when Republicans win & Democrats should respond in kind. No package deals for appeals court seats whatsoever.

        As for the district court suggestions, here is my opinion on each;

        Nannette Jolivette Brown – Born in 1963 & too old for the appeals court.

        Piper Griffin – Born in 1962 & too old for the appeals court.

        Kenneth Polite – Born 1976 & looks like a good choice. Particularly with there being no black men appointed to the appeals court as of yet by President Biden.

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      • What is your threshold for a nominee being “too old”? Judge Dennis, who is going senior when his successor is confirmed, was 59 when he took office in 1995 (he’s now 85). Additionally, I don’t have concrete evidence for this but I’m pretty sure that judges who become judges at an older age generally retire at an older age than those put on the bench when younger.

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      • I don’t care that much about the age of Dennis’s successor (provided they aren’t way too old, i.e. >65) as long as they are as liberal or close to as liberal as Dennis. But I understand why it’s good to have young judges. Another benefit of young judges is that they have a chance of becoming Chief Judge.

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  4. In Georgia, I can possibly see state Appellate Judge Ken Hodges, mentioned in an earlier article, being nominated for one of the vacancies. If Georgia Republicans see him as an electoral threat, than Hodges could probably get confirmed without much fuss. They might overlook his ethical issues unless new ones come up.

    Leslie Abrams Gardner for the 11th Circuit would be a nominee whom Republicans absolutely, positively would not support. It’s not just because they label her a flaming leftist. Some are accusing her of conflict of interest for ruling in a suit that involved her sister. The truth is more complex, she ruled in a case very similar to a separate one her sister was involved in. Gardner did nothing illegal, but one can make the case that it looks bad.

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    • Georgia has a wealth of young progressives, particularly African American & Jewish (As are the two new US senators). I would think that is where we will see the district court nominees come from, particularly after seeing who is on the vetting committee. Since Georgia has had Republican governors for over two decades I doubt any state court judges will be nominated. I doubt they will go the route of somebody that can run for office & win an election.

      I am sure Republicans will object to Leslie Abrams Gardner & will try to throw everything except the kitchen sink at her. Of course they know who her sister is so that alone will be one reason but the more legitimate reason would be because she is automatically on the short list for a supreme court nomination if she sits on an appeals court. I think just like Ketanji Brown Jackson, their efforts will fall flat. She was confirmed 100 – 0 & is more then qualified for the 11th circuit. I would guess at the end of the day she would be confirmed with 51 – 54 votes.

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    • I sure hope the GOP tries to smear Leslie Abrams Gardner. Because that would give the Biden Administration an excuse to nominate someone better than a judge that got Ted Cruz’s vote in 2014.

      Fred Smith Jr. or Lauren Sudeall are far better choices for this 11th Circuit vacancy (and would be future Supreme Court candidates). And I’m not sure that it helps Stacey Abrams’ candidacy for Governor to see her sister be elevated to the 11th Circuit right now.

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      • I believe the Biden administration would fight for Leslie Abrams Gardner’s nomination. It would not be a good thing for them not to fight for her after all Stacey did for them as well as both Georgia senators. I don’t see Leslie being elevated hurting Stacey whatsoever. Nobody who is going to vote for Stacey Abrams to be governor today is going to walk into a voting booth & not vote for her because her sister got elevated next year, particularly with her being so qualified for things I mentioned in an early post in her own right. I believe this time around she would probably not get more then the usual 3 GOP votes to confirm but I see no issue with her being confirmed as the only black women on the 11th circuit.

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      • I looked up Fred Smith and Lauren Sudeall when I read them. They’re not just inflammatory, but nuclear explosion inflammatory.

        Both are college professors. Smith teaches at the Emory School of Law. In his bio, it states, “Smith promotes equity and social justice” Don’t believe me? Here is the link:

        https://law.emory.edu/faculty/faculty-profiles/smith-fred-profile.html

        Equity and Social Justice are allegedly code words for excusing violent crime.

        Oh, about Lauren Sudeall, she once worked for a Soros Justice Fellow at the Southern Center for Human Rights. Soros, as in George Soros. Some conservatives think that Soros is the anti-Christ.

        Have they shown any interest in becoming judges?

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      • I think after the last 4 years of Trump appointees we need to stop pretending that Republicans are holier then thou when they are in power. Some of the Trump nominees had said worst so I don’t see an issue if a Democrat nominee has expressed opinions now that the shoe is on the other foot.

        I read just yesterday that one of Biden’s nominees (Sorry I can’t remember which one off the top of my head) were also a Soros Justice Fellow.

        After seeing David Estudillo only get 54 votes on Tuesday despite being a Republican from a blue state with two Democrat senators, my patience has run thin. At this point Biden should just focus on nominees that can get the 50 Democrats, Graham, Collins & Murkoski. Anything else is just icing on the cake.

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      • Nothing personal, but in a perverse way your response about Fred Smith and Lauren Sudeall brought a huge smile to my face. This is how most people even on the center-left felt about Trump’s judicial picks. It is how we felt about Gorsuch, Kavanaugh, and especially Barrett.

        Both Fred Smith Jr and Lauren Sudeall are highly qualified for the 11th Circuit under any definition. They have a strong academic and public interest career, including law degrees at top institutions and Supreme Court clerkships. These are kinds of people Biden needs to nominate to judgeships.

        But frankly I don’t care about bad faith GOP opposition to potential judicial candidates. If the GOP thinks equity and social justice are code words for “excusing violent crime” or that Soros is the “anti-Christ” then I don’t think we should be negotiating people with them regarding judicial nominees.

        Leslie Abrams Gardner is a gift of a nomination to the GOP. Biden should pass on her (given that the GOP will strongly oppose her anyway) and nominate Smith or Sudeall to the 11th Circuit, and I would consider Smith, who is also LGBT, for a DC Circuit appointment.

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      • Replying to Dequan,

        “After seeing David Estudillo only get 54 votes on Tuesday despite being a Republican from a blue state with two Democrat senators, my patience has run thin. At this point Biden should just focus on nominees that can get the 50 Democrats, Graham, Collins & Murkoski. Anything else is just icing on the cake.”

        There has to be some grand plan behind this. The Republicans wouldn’t shoot down Estudillo for nothing, even after considering that some of them will vote against Biden’s nominees no matter what. Someone mentioned elsewhere within this blog that Estudillo’s nomination could be a compromise in order to confirm progressive Tana Lin. I think this is likely, meaning that Manchin probably has some hesitation to confirm Lin. I think ultimately Manchin will vote to confirm Lin.

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  5. About the Middle District of Alabama vacancy. I know of two names floated, though I don’t know whose applied.

    One is AUSA William Chambers, who applied in 2013. He was head of a Drug Task Force and recently filed a lawsuit against the Alabama state Prison system for poor conditions for prisoners.

    Another is Magistrate Judge Jerusha T. Adams. If selected, she’d be the first black woman to serve on the Middle District Court. She clerked for four different judges before becoming a federal prosecutor and has been a judge since 2019. Adams would be consistent with other Biden nominees.

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    • To answer joshir73102 question, I don’t think Biden should nominate anybody to an appeals court that would not be considered for the US supreme court. And we all know age is a MAJOR factor in nominations so these are the considerations for me to say a nominee is young enough for an appeals court nomination along with one other factors;

      1. They need to be young enough to realistically be considered for a second Supreme Court vacancy which probably will not happen until late in Biden’s first term or a second term. Biden has already said his first vacancy is going to be a black women so assuming a first vacancy will happen in the next year or two, any black women he appoints to the appeals court can be a little older. I think 55 years old is the oldest age for a realistic consideration at the time of a vacancy. To me Lucy Koh, Gustavo Gelpí & Beth Robinson all fail in this category.

      2. I think the nominee needs to have a proven progressive track record. To me Lucy Koh & Tiffany P. Cunningham all fail in this category but Cunningham was nominated to the Federal Circuit so being well versed in patent law is more important for that court. I would say Toby J. Heytens is borderline in this category.

      Mitch, Jerusha T. Adams looks like a good nominee. My issue is no matter who it is, I can see senator Tubbervilllie trying to block any district court nominee by with holding his blue slip. Which goes back to my earlier comment, how much patience will senator Durbin have for this from him & others like senators Cruz, Hawley & Cotton.

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      • Firstly as I mentioned in the other thread, blue slip privileges should be revoked for those who supported Trump’s efforts to overturn the election. Tommy Tuberville fits that category and Durbin should ignore any objection that he may have. I’d be willing to work with Shelby if he is reasonable. While I would far prefer someone from the Equal Justice Initiative or an AFPD, I can probably live with Jerusha Adams in Alabama.

        IMO, there are several that fail your #2. I would say that Koh, Sanchez, Gelpi, and Heytens all fail.

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      • I disagree on Gelpi & Sanchez not having a proven progressive background.

        Prior to becoming a judge, Sanchez maintained an active pro bono practice, & in 2010 received the ACLU Social Justice Award for his work to enforce and improve heat illness protection safety regulations for California farmworkers. Plus he worked in Jerry Brown’s administration.

        And Gelpi’s books & other writings are very progressive. I have watched every senate judiciary committee hearing for Biden’s nominees & I think Gelpi got hit the hardest out of all the nominees I have watched. This is of course despite him being nominated by George W. Bush.

        Now if your argument is there were better nominees then them I agree with you on that. California has a wealth of more progressive Hispanic men that are just as young or younger that could have been nominees. And as discussed on other threads, PR Supreme Court chief justice Maite Oronoz Rodríguez or Adriel Cepeda would have been far better choices then Gelpi. Hopefully one or both of them will be placed on the PR district court.

        I put Toby J. Heytens on the borderline because while I concede Virginia has a wealth of more progressive possibilities, I’m confident that with him being in such a high profile position such as solicitor general in a blue state like Virginia, combined with his clerkship for RBG, I see little chance of him being a surprise in his jurisprudence.

        I think its good to have one or two white males on the appeals court to have in Biden’s back pocket to use in a Scalia type vacancy where in a 50/50 senate in an election year. Perhaps he would be confirmable should a surprise last minute vacancy occur. It just sucks that now the second vacancy on the fourth circuit will also probably be a white male as West Virginia’s other appeals court judge is a women. I would guess senator Manchin will recommend a moderate or left of center white male.

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      • It seems that Senator Durbin is taking a wait-and-see approach to Blue Slips. Negotiations are ongoing and it always takes longer to reach agreements with Senators from the opposite party. As I mentioned, so far nothing unusual has happened so far.

        Another aspect is that in states with two Senators of the same party, the junior Senator tends to defer to the senior Senator when it comes to appointments. That seems to be more pronounced among Republicans. The three Senators you mentioned have senior colleagues whom the Democrats have no personal animus towards, along with Senator Shelby. So agreements may be forthcoming, even if the judges turn out to be moderate liberals as opposed to bold progressives.

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      • I definitely understand your thoughts, especially given that judges have lifetime appointment. I agree that age and a progressive track record are both important. If a judge fails both, then we risk that judge potentially taking senior status under a Republican (as several of Obama’s appointees did). The more progressive a judge is, the more likely they are to time their retirement to bring in another progressive.

        I would say age matters a lot more for the Supreme Court since every seat there counts.

        Like

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